Implementing the Water Environment and Water Services (Scotland) Act 2003: use of CAR 2011 emergency provisions

4. PRACTICAL APPLICATIONS

4.1 Type 1 situation

CAR does not require prior-authorisation for activities that category 1 or category 2 responders reasonably need to take to protect people, property or the environment from an imminent risk of serious harm.

"Category 1 and 2 responders" comprise a wide range of public bodies and utility providers with responsibilities during emergencies. These include the fire and rescue services, local authorities, airport operators, harbour authorities and Scottish Water. The full list of responders is set out in the Civil Contingencies Act 2004.

Where a responder needs to take action involving controlled activities to deal with an imminent risk, it must take all practicable steps to prevent deterioration of the water environment. To be effective, such steps need to be incorporated into the responder's normal operating procedures. For example, the fire and rescue services are expected to operate in line with the legislation and guidance set out in the following:

• Fire (Scotland) Act 2005
• The Fire (Additional Function) (Scotland) Order 2005
• Fire and Rescue Manual Volume 2 - Environmental Protection 2008

The Fire and Rescue Manual sets out in some detail the practical steps the fire and rescue services should take to minimise environmental harm.

Responders are also expected to continue to contact SEPA (itself a category 1 responder) at an early stage to ensure that the incident response team can take appropriate account of the potential impacts on the water environment.

4.2 Type 2 situation

Once the immediate danger to human life or the environment has passed it may be necessary in certain circumstances to then take action to make the area safe, restore essential services, etc. Such action may be undertaken by category 1 or 2 responders, other responsible bodies or their appointed contractors.

In those Type 2 situations in which when response time is limited, we expect authorisation from SEPA to be provided for by means of a simple, pro-forma authorisation, or, if needs be, verbally. In many cases, a pro-forma authorisation is likely to be based on standard conditions, however SEPA will be able to undertake such on-the-spot assessments and impose such site-specific conditions as it considers reasonably practicable in the circumstances. Accordingly, risks to the water environment will be taken into account as far as possible without compromising the ability to deal with the aftermath of the emergency in an effective and timely manner.

4.3 Type 3 situation

Type 3 emergency situations typically develop over a longer period of time than type 1 and 2 situations and the initial emergency response is focused on trying to prevent the situation from escalating. This also means that there is more time to consider how best to manage risks to the water environment and its users. Such emergencies include extended periods of no or limited rainfall that pose a serious threat to water supplies and outbreaks of animal or plant diseases.

We expect appropriate contingency plans to be prepared in advance of these emergency situations and the relevant responsible authorities to coordinate the production of these in consultation with SEPA. The plans should set out the different types of action that will be taken to deal with the developing emergency and how risks to the water environment in relation to those actions involving controlled activities will be minimised as far as reasonably practicable. Consultation with all relevant parties whose interests could be significantly affected will be a key step in developing the plans.

Where, in a type 3 emergency, effective management of the situation requires a more prompt regulatory response than the normal CAR process allows, SEPA will be able to utilise CAR's accelerated determination procedures to temporarily authorise, vary or suspend controlled activities. Where such accelerated determinations are necessary, the normal CAR advertisement and consultation procedures will not be required. However, we expect the responsible persons to carry out such direct consultation with those parties whose interests could be significantly affected as is reasonably practicable before action is taken.

Where a proposed action or set of actions is expected to be controversial, Ministers may issue a direction to SEPA, setting out how SEPA should use its powers to help deal with the emergency situation. Before issuing a direction, Ministers must take account of the emergency management plan; advice from SEPA and the lead body responsible for managing the emergency situation; and responses to any consultations with interested parties.

A number of emergency situations where these procedures may be applicable are described in Annex 1.